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Ian Mulgrew: A chance for legal professionals to clear the decks

Law Society of B.C. should call a referendum over the proposed Trinity Western University law school

Benchers are in an untenable position in regards to the Trinity Western University law school, Ian Mulgrew writes.

Photograph by: wayne leidenfrost Wayne Leidenfrost
, Vancouver Sun

The Law Society of B.C. should immediately conduct a referendum of its membership over the proposed Trinity Western University law school with its controversial Christian Community Covenant.

The overwhelming but non-binding vote at the June 10 special general meeting of legal professionals — to rescind approval of the school — put the benchers who govern the society in an untenable position.

Between a rock and a hard place, as they say.

In an emotional debate at their own meeting April 11, the benchers voted 20-7 to recognize the Evangelical institution’s planned law school even though it forces students, faculty and staff to sign the covenant and face penalties if they fail live up its tenets, considered by many to be anti-gay and anti-choice.

The rare provincewide congress produced an equally passionate discussion but, in a 3,210 to 968 vote, the lawyers loudly demanded the benchers do an about-face.

I don’t think they’re able to do that, and not because they won’t be able to look themselves in the mirror for changing their mind.

It’s about their view of the law.

Unlike the membership, the benchers are constrained by the law, and the majority stated unequivocally that they believe to be binding a 2001 decision by the Supreme Court of Canada involving the B.C. College of Teachers and Trinity Western, in which the covenant passed muster.

The majority consider voting against TWU to be a violation of their duty and many emphasized that carrying out their duty ran counter to their personal belief.

Under the society’s bylaws, the benchers can delay implementing the will of the special general meeting for a year. Afterward, their opponents, led by Victoria’s Michael Mulligan, can force the binding referendum.

As former attorney-general Geoff Plant pointed out, this debate has raised issues that the benchers don’t usually confront: their ambit is generally restricted to professional competence and honesty.

This isn’t about those questions.

No one suggests graduates of a TWU law school in Langley would be professionally inferior to those trained elsewhere.

It’s about something quite different — how equality is reflected and embodied in a public institution like a law school.

Like Mulligan, I don’t believe the law society can reconcile the discriminatory principles of the covenant with the core principle in the lawyer’s oath — that they uphold the rights and freedoms of all people.

This is a dilemma that has sorely divided the legal community across the country and court cases have been launched that will likely end up at the Supreme Court of Canada.

Because it would be binding, I think a provincewide referendum would relieve the benchers of a conundrum they can’t and shouldn’t be expected to resolve.

More than that, it would trigger even wider participation in this important debate and fuel a discussion that could inform the court rulings.

To force a binding decision on the benchers, the winds of change must win a two-thirds majority in a referendum involving at least one-third of all members in good standing.

One-third of the more than 11,000 society members is about 3,700; a two-thirds majority of that minimum vote, some 2,450. We’ve already seen that many come out for the special general meeting.

I have little doubt a referendum would pass and see the B.C. law society join its Ontario and Nova Scotia counterparts in telling TWU to drop the covenant.

That would clear the decks and send a strong direction to the courts in the looming litigation.

A referendum also would relieve the benchers of the prospect of either thumbing their noses at the huge number of members who have already made their disagreement known or, without a binding order from the members, reversing their well-articulated and honourable principles.

There is a considerable argument to be made, which I find persuasive, that the Supreme Court of Canada decision isn’t binding — that the Law Society is capable of doing the balancing of rights required that the teachers’ college was not competent to do and that there has been a sea change in the law and public opinion that renders it obsolete.

But a few dozen benchers shouldn’t have to shoulder the burden of making such a momentous, nay, historic decision.

They have done their duty, let the members do theirs. Call a referendum.

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